Today’s Opinion in Beard v. Banks

In a 6-2 decision (Justice Alito did not participate), the Supreme Court in Beard v. Banks upheld a Pennsylvania prison policy denying magazines, newspapers, and photographs to some of the prison's most violent and incorrigible inmates.

Facts and Proceedings Below

In 2000, faced with inmates who were engaged in serious or repeated misconduct such as assault, drug possession, and concealment of weapons and who were not responding to behavior incentives such as the withdrawal of television and visitation privileges, the Pennsylvania Department of Corrections (DOC), established the Long Term Segregation Unit (LTSU) to restrictively house these violent and problematic inmates. Within the LTSU is Level 2, the most restrictive unit reserved for the most "incorrigible and recalcitrant inmates." Assignment to Level 2 requires an inmate to remain there for a minimum of 90 days, and prohibits the inmate from receiving newspapers or magazines from the publisher unless the materials are legal or religious in nature, and it prohibits the receipt of any photographs. Level 2 inmates are permitted legal and personal correspondence, religious and legal materials, two library books, and writing paper; their behavior is evaluated every thirty days after the initial ninety-day period to determine if their behavior has been corrected and merits their being transferred to a less restrictive unit. The strict prohibitions were justified as a means to provide for the safety of guards by removing objects that could be used as weapons, start cell fires, or fling waste at guards as well as a means to provide incentive to behave and re-join the general prison population with full rights. Ronald Banks, a Level 2 inmate, challenged the constitutionality of the prohibitions on behalf of all Level 2 inmates, arguing that they violate prisoners' free speech rights under the First Amendment.

Analyzing the case under the factors laid out in Turner v. Safley, the magistrate judge recommended summary judgment for the defendant. The district court agreed, finding that the four Turner factors were satisfied and weighed in favor of the DOC and its penological purposes. On appeal, the Third Circuit disagreed with the district court's analysis, arguing that the DOC had failed to show how the Level 2 policies were rationally related to the legitimate penological interest of rehabilitation and security and that the prison's goals could be achieved by alternative means without infringing upon prisoners' rights. Justice Alito, while still on the Third Circuit, dissented from the opinion, arguing that the majority had failed to grant the necessary deference due to the decisions of experienced corrections officers and found the temporary and last resort restrictions to be reasonable under the Turner standard. The DOC appealed, and the Supreme Court granted cert.

The Supreme Court Decision

Justice Breyer wrote the plurality opinion in which the Chief Justice, Justice Kennedy, and Justice Souter joined. Analyzing the record as it arose on a motion for summary judgment, he found that Banks had failed to set forth facts that could warrant a determination in his favor. Justice Breyer laid out his findings within the Turner framework, noting that while imprisonment does not deprive a prisoner of important constitutional protections such as the First Amendment, the Constitution does permit greater restrictions on such rights in a prison than it would elsewhere, and that restrictive prison regulations are permissible if reasonably related to legitimate penological interests.

With regard to the first Turner factor "“ whether there is a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it" "“ the plurality was persuaded by the DOC's primary justification of the need to motivate better behavior on the part of particularly difficult prisoners as adequate to find the DOC policy reasonable. In dicta, the plurality announced that this justification was so strong that it had no need to consider the DOC's additional justification of the need to minimize the amount of property controlled in cells and to assure prison safety in order to make its decision.

The plurality then addressed and quickly disposed of the remaining Turner factors "“whether there is an "alternative means of exercising the right that remain open to prison inmates," what impact the accommodations of the asserted constitutional rights will have on guards, other inmates and prison resources, and whether "'ready alternatives' for furthering the governmental interest" are available. Finding that although there is no alternative for a Level 2 prisoner, the plurality explained that this is not conclusive of the reasonableness of the policy, that accommodation of the constitutional right would have a negative impact on the inmate, and that there are no alternative methods to accommodate the prisoner's rights at "de minimis cost to valid penological interests." Finding that the court of appeals had placed too high a burden upon the Secretary of the DOC and offered too little deference to the judgment and experience of prison officials, the plurality concluded by emphasizing that the DOC had demonstrated more than just a logical relation between the policy and the DOC's penological interests; rather, it had shown a reasonable one that brought it within Turner's legitimate scope.

In his concurrence, Justice Thomas, joined by Justice Scalia, pointed out the inherent weaknesses in the Turner analysis. Instead, Justice Thomas based his analysis of the case on the framework he had set forth in Overton v. Bazzetta, and emphasized that because the Constitution does not define incarceration, states are free to define "all types of punishment, including imprisonment, to encompass various types of deprivations" as long as they are consistent with the Eighth Amendment. He saw the only question before the Court as whether respondent's sentence deprived him of the rights he sought to exercise. He answered that in the positive, reasoning that because Pennsylvania inmates are subject to the disciplinary measures set forth by the Pennsylvania DOC, the regulations promulgated by the DOC are by default included within the inmate's sentence and therefore respondent's challenge must fail.

Justice Stevens, joined by Justice Ginsburg, dissented. He emphasized that the petitioner did not establish that as a matter of law, the challenged rule is reasonably related to the interests of prison security and inmate rehabilitation. Finding that rational minds could differ regarding whether the prohibitions could have more than a marginal effect on security or promote rehabilitation, and whether the length of deprivation suggests an exaggerated response to a rehabilitative interest, the petitioner's valid interest in security was not enough to justify a judgment as a matter of law, and a full trial is necessary before forming definite judgment about whether the challenged regulation is reasonably related to petitioner's valid interests in security and rehabilitation. Justice Stevens also noted that the prison regulation can almost be construed as a "state sponsored effort at mind control," which deprives prisoners of material that is "central to the development and preservation of individual identity" and thereby interferes with a prisoner's ability to remember loved ones. He also raised the question whether the inherent dignity and worth of the inmates were being respected.

In a separate dissenting opinion, Justice Ginsburg stressed that there is more to summary judgment than a genuine issue of material fact "“ rather, a moving party must show he is "entitled to a judgment as a matter of law." Stating that although Turner deference to prison officials should be incorporated into the summary judgment evaluation, it should come into play only after all the facts are viewed in the light most favorable to the nonmoving party and inferences drawn in that favor. By doing otherwise, she argues that the plurality has elevated the summary judgment opponent's burden to an almost unattainable height and de facto tells prison officials they will succeed in these cases by barely trying if they justify their behavior on their professional judgment.

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On November 13, Justice Sonia Sotomayor, Judge Jennifer Walker Elrod of the U.S. Court of Appeals for the 5th Circuit and Judge Susan Carney of the U.S. Court of Appeals for the 2nd Circuit presided over the final round of the 2018 Ames Moot Court Competition at Harvard Law School.